One of the first things contemporary law students learn is that one cannot separate "rights" from "remedies." This basically goes back to Oliver Wendell Holmes' argument, made most concisely in "The Path of the Law" (1897) that a "bad man" interested in knowing what "the law" is will be concerned not with "the law on the books" (Roscoe Pound's term), but, rather "the law in action" (ditto), which means, practically speaking, a "prediction" that the iron fist of the state, usually operating through courts, will be brought to bear if the "bad man" violates the law. If there is in fact no iron fist, then, for the "bad man" at least, there is no law, for there is no cost at all to violating it and the "bad man," by Holmesian definition, is a pure Chicago-type economist concerned only with calculation of costs (the "payment" exacted by the state) and benefits (the gains for one's actions).

John Marshall, in that chestnut of all American constitutional law cases, also recognized the importance that remedies exist for the denial of rights, though, ironically in the present context, he said that it was unconstitutional for Congress to give the Supreme Court jurisdiction to hear the case. Now, of course, the issue is whether Congress can simply strip courts of jurisdiction, forever.

So now we have a disgusting capitulation by the almost-tragic figure of John McCain, whose near-nobility has been thoroughly corrupted by his desire to be President (though there's no real doubt he'd be a far superior President to the incumbent) that removes any real prospect of a remedy for those tortured by the United States. No serious person could possibly believe that the US will ever actually prosecute any member of the CIA who engages in tortue--and we've know for at least two years now that the OLC memos are all about the CIA and not, in any serious way, about the military--and the capitulation deprives anyone victimized by the United States of a day in court. (And, of course, even if someone can get to court, as did the Canadian Mr. Amar, craven judges will allow the mantra "state secrets privilege" to trump any claim of right. So much for the "Equal Justice Under Law" carved over the US Supreme Court.)

So are we on our way toward an American versio of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did? No, I don't think the Bush Administration should be compared with the Nazis, but, as I've been repeatedly arguing vis-a-vis Carl Schmitt, I believe that we ignore the legal thinking and analysis that took place during Weimar and its aftermath at our peril. It is no great compliment to say that we are, as yet, nowhere near the Nazis. It should be enough to realize that the often brilliant analysts responding to the great crisis in their personal and professional lives may have something to teach us today about how political institutions operate under stress (and where demagogic and opportunistic politicians realize that there are potential gains to maximizing public fears of the Other).

This so-called "compromise" means, purely and simply, that we don't even profess to take seriously the minimal conditions for "the rule of law" with regard to those determined, often by fiat judgment, to be "the worst of the worst." What is even more dispiriting is that there is no reason to believe that the Democrats will defeat this disgrace, as they could through a filibuster that would simply delay its passage beyond the November elections, the whole point of this charade, because they are fearful of being tarred as "friends of the terrorists." There is, that is, no "opposition party" in America with regard to one of the deepest issues of our time. THAT is George W. Bush's biggest victory, helped along by Tom Daschle's (and John Kerry's and Hillary Clinton's etc.) absolutely disastrous decision in 2002 to write Bush a blank check on Iraq in order to focus the attention of the American electorate on prescription drugs for the elderly. And not a single prominent Democrat, of course, responded to the articles in the Washington Post, New York Times, Wall Street Journal, and the Economist, beginning in December 2002, that made it very clear that the US was violating the Geneva Conventions and engaging in what could only be called "torture." Denouncing Abh Ghraib was a cheap, and basically irrelevant, gesture, since what went on there a mere sideshow that evidenced criminal negligence on the part of the Bush Administration but had nothing to do with the CIA's "professional" interrogation practices or "rendition." (You may recall that John Kerry said literally not one word about such issues during his entire campaign.)

George Bush has fundamentally reshaped the "conventional wisdom" of American political life in a way that most presidents can only dream of. Ronald Reagan elicited only agreement, at least rhetorically, that "the era of big government is over." George Bush has elicited agreement that "those claiming to have been tortured by the United States have no rights that the United States is bound to respect" in any ordinary legal sense, as by having to show up in court. America will be paying for that reshaping for many, many years to come.

Bush's concerns about the prosecution of CIA interrogators may also have something to do with the reversal of his position on the International Criminal Court a couple of years ago. His administration originally made an effective argument that the ICC was a flawed vehicle with no real system of checks and balances or system of appeal in place, thus opening the possibility of political bias in its approach to prosecution of war criminals based on who sat upon the commission. Later, due to continued international and domestic criticism, the Bush administration quietly abandoned this position and signed us on to the ICC without demanding that it reform.

The premise of the ICC (to my knowledge) is that they only prosecute war criminals if the country to which the accuse belong are incapable or unwilling to try them. If the U.S. did not prosecute CIA interrogators, it would fall on the ICC to do so. I suspect that Bush realizes this and is fighting the anti-terror bill in an attempt to avoid this process and hide the fact that he signed us into a bad system for politically expediency.

The Dems should filibuter every aspect of this "compromise" and then run on it, district by district and senate seat by senate seat. Put it straight to the American people that the next Congree they elect in November should decide these issues. If they want to legalize torture, renditions, secret prisons, no habeas corpus, and all the rest, they should say so with their votes. In other words, use the filibuster to make this election a national referendum on what we are willing to have done in our name, with this being the one and only issue on the ballot.

I am failing to see the fundamental reshaping in the law to which you refer.

The subjects of this bill are wartime foreign enemy combatants in civilian clothing whose method of fighting is the mass murder of civilians.

I am unaware of any time in our history when wartime foreign enemy combatants of any type were ever extended US constitutional rights.

Generally, enemy combatants fighting in civilian clothing or US uniforms were summarily executed for most of our history through at least WWII when we executed SS wearing our uniforms during the Battle of the Bulge. There was no right to trial. Due process was a battlefield determination that they were enemy combatants.

The benefits of the Geneva Conventions were intentionally limited to those combatants who themselves followed the requirements of the Geneva Conventions. The purpose of barring combatants from fighting dressed as civilians while hiding amongst civilians was to spare civilians as much as possible from being mistakenly targeted as combatants. To reward combatants who commit war crimes by violating this prescription against fighting as civilians completely undermines the purpose of the Geneva Conventions and places civilians in danger. Therefore, the argument that the benefits of the Geneva Conventions apply to illegal combatants like al Qaeda is both wrong and dangerous.

The only change I see here is the abandonment of the Vietnam policy of granting illegal combatant VC Geneva Convention protections under the vain hope that the enemy would reciprocate. In fact, none of the enemies we have fought have extended Geneva Convention protections to our troops which fall under the requirements of those conventions. Therefore, the utilitarian argument that illegal enemy combatants should receive Geneva Convention benefits to which they are not eligible in the hope that they will be nice to our troops has no merit.

In a nutshell, the US is returning to the legal status quo prior to Vietnam.

The idea that a professor would write a post even comparing the current administrtaion with the Fuehrer and his band of killers is apalling, but not surprising. It is his mindset that perfectly explains why the left has lost the last few elections and will continue to lose in the future.

Bart DePalma had it exactly right.

Unfortunately for the Professor, the majority of the public could not care less what happens to AQ terrorists. Quite frankly, our techniques such as waterboarding, the belly slap, the attention grab, sleep deprivationa nd forced listening to Christina Aguilera are nothing compared to what real torture is.

McCain is a loser. Anyone who graduates 895 out of 900 in his navy class(look it up), that is not even in the 1st percentile and gets shot down almost immediately after enetering combat is a miltary failure. Who cares what he has to say? I certainly don't.

Seeing the libs whine over this a pathetic.

There was time when this country knew how to fight wars. When men like Roosevelt and Truman ordered the mass killing of civilians on a scale that makes W look like Ghandi by comparison. Yet I've never read one post on here about how they had no respect for law or human rights or anything like that.

I'm glad these programs will continue.

My only regret is that the videotape of Ramzi BinAlshib screaming like a baby hasn't released. Or of KSM being waterboarded, I know I'd like to see it.

One doesn't know whether "Sarah Weddington" is in fact a fascist or simply writing a satific posting pretending to be one. I respectfully suggest that if she is serious, and if she represents even a reasonable percentage of contemporary Americans, that she (and they) are greater threats to the maintenance of the United States as a "city on a hill" than any of the terrorists against whom such policies are being defended.

I believe that arguing whether waterboarding constitutes "real" torture is a bit like arguing Holocaust denial. Anyone who believes it isn't (and that the Holocaust didn't occur) is simply depraved. (Waterborading is in effect the drowning of a person, pulling him out of it at the last instant and then threatening to do it again if the relevant information isn't forthcoming.)

Bart de Palma raises serious points that deserve serious answers. I will stipulate that non-uniform-wearing SS were summarily executed and not given POW status during WWII. (I have no read the relevant history.) I also strongly suspect that there was far more than "probable cause" to believe that the persons identified as non-uniform-wearing SS were in fact non-uniform-wearing members of the SS. One of the obvious problems with the American policies at present is that there is often little or no evidence that the persons defined as "the worst of the worst" were more than unlukcy people in the wrong place at the wrong time. (I concede, incidentally, that this argument applies mainly to the poor wretches at Abu Ghraib, most of whom were declared by the Pentagon itself to be minimally, if at all, threatening, or to Guantanamo.) The "high-value" suspects held by the CIA are, quite likely, "the worst of the worst." At that point, we really have to decide what kind of country we are.

I agree, incidentally, that it is probably a vain to hope for "reciprocity" from Al Qaeda. This, of course, raises the most fundamental philosophical issue: Do we refrain from torture simply as part of a utilitarian "deal" or do we do so (assuming we in fact do so) because of a basic commitment to a political/moral philosophy that declares that even the "worst of the worst" retains some minimal body of rights simply by virtue of showing up in the world. (One might read the Declaration of Independence as articulating such a theory with regard to its evocation of "inalienable rights.) At the end of the day, as I've written in the book I edited, Torture: A Collection, I am a reluctant utilitarian (as is Michael Walzer), in fact willing to countenance torture under extremely restricted circumstances. But this requires that one have great trust in the people proposing to define what those circumstances are. As has no doubt become apparent in earlier posts, I have no such confidence in those running the current Administration inasmuch as all too much of their behavior is explained by the desire to be re-elected. One justification for Dershowitz's idea of "torture warrants," however (justifiably) troublesome the idea, is that an independent federal judge, presumptively with no further political ambitions--one could draw the pool from retired Supreme Court justices and senior circuit court judges, for example--would determine whether the situation was sufficiently dire as to justify deviating from what has become the almost paradigmatic norm of human rights.

A funny thing that is never mentioned is, why would guys like KSM fear waterboarding? Over and over again we hear that they're ready to die for Allah, that they love death and welcome it. If that's the case, why should he be afraid of drowning of the feeling of imminent death? If anyhing, we;d be doing him a favor. Keeping him alive is the real torture, or so we've been led to believe.

I respectfully suggest that if we had custody of KSM on 9-10-2001 and we needed to sic fire ants on his genitals, dunk him in sulfuric acid, or waterboard him in order to find out what was going to take place the next day, more than 50% of the country would wholeheartedly approve. And if the professor thinks we're fascists, that's his problem.

I've yet to hear the professor's strategy for interrogation. How does he propose we get information out of them?

Other than name, rank and serial number what can we do? And if KSM on 9-10-01 just said "I'm not talking", should we have just said, "ok, we tried, guess there's nothing we can do".

And to compare waterboarding, cold rooms, standing up, sleep deprivation and belly slapping to the very real torture that is disposed every day around the world is an insult to those who have suffered real torture.

I reckon there are milions around the world who would jumo at the chance to be xposed to the above tactics in place of the real torture they're subjected to on a daily basis.

I submit we're the country that killed millions of German civilians, among them many women and children, that incinerated Japanese children without flinching and then celebrated it at the PX the next day.

We're the country that so utterly destroyed the Empire of Japan that they forever forswore the war option and had their God kneel before us in supplication.

We're the country that I'd hope will kill every last man, woman and child in the enemy camp if it leads to victory. The country that will so destroy them that, like Japan and Germany before them, the idea of committing violence against the US is so unthinkable as to be impossible.

But more to the point, I'd hope we're the country that doesn't get our panties in a wad over cold rooms and standing up and loud music and belly slapping and attention grabbing to the point that the liberals in this ocuntry would like us to.

I know what type of country the liberals want us to be. And I'm thankful that their vision has been defeated the last 2 elections.

Please, somebody, anybody, keep writing comments so Sarah will keep posting. She is a prime example of why I can see this time period looking like 1850 or so in America. The sides are being drawn. The long knives are out for today's Whig Party. Keep it up Sarah....there she is folks. The 'other side'.

As for Brian, analogy he posits is false. Would that it were so simple to catch AQ members in civvies like we once caught German soldiers. That is not what is being debated here. What is being debated here is fairly simple. Does one man in govt have the ability to declare someone an enemy combatant, with all that implies. i.e. welcome to Syria or some such place.

But please, once again, keep posting Sarah. Maybe she will open the eyes of some doubters as to what's out there and what awaits us if our side loses.

lease, somebody, anybody, keep writing comments so Sarah will keep posting. She is a prime example of why I can see this time period looking like 1850 or so in America. The sides are being drawn. The long knives are out for today's Whig Party. Keep it up Sarah....there she is folks. The 'other side'.

As for Brian, analogy he posits is false. Would that it were so simple to catch AQ members in civvies like we once caught German soldiers. That is not what is being debated here. What is being debated here is fairly simple. Does one man in govt have the ability to declare someone an enemy combatant, with all that implies. i.e. welcome to Syria or some such place.

But please, once again, keep posting Sarah. Maybe she will open the eyes of some doubters as to what's out there and what awaits us if our side loses. lh

For all those who sit there advocating allowing our troops to use torture I'm a bit curious how many of you served or are actually serving in the U.S. military. Because the question that concerns me on this issue is not what actually happens to al-Qaeda detainees themselves, but what happens 10 or 20 years down the road to the soldiers who are ordered to interrogate them in methods contradictory to the Geneva Convention. Those soldiers are following the orders of their commanding officers and civilian leaders and face repercussions if those orders are not obeyed. But in 10 or 20 years the current leaders will be gone and the new ones may very well decide that our soldiers should be held accountable for their actions today, the same as we hold Nazi foot soldiers accountable for what they were ordered to do in World War II. It's a horrible payoff to give to people who risk their lives to protect our freedoms. From many of the opinions I've seen posted on this thread, few seem to consider this at all. The Geneva Convention is a limited document and has its problems, but it serves an important purpose in warfare, which is to provide our troops a general moral compass to insure that they know which actions on the battlefield will be considered acceptable or unacceptable, to keep our troops from being made the political scapegoats of their leaders' failures. Bush's redefining of the Convention strips our troops of that protection.

It's very easy to pontificate about how torture is such an important and indispensable tool when you're not the ones who have to deal with the consequences of inflicting it. Our military's top lawyers opposed the president's measure because they recognize what a bad proposal it is for these very reasons. They aren't being "liberal" or weak and they aren't caving to "political correctness", they're just looking at the bigger picture. The President isn't. Those who disagree are welcome to join the Army (as I did) and test the waters themselves if they think the president's stance is such a wise one.

As for the unduly harsh comments from some about Sen. McCain, I don't agree with the man myself on his bill, but there's absolutely no reason to demonize him and insult the service he has rendered. The man's done a hell of a lot more to serve his country and suffered more for it than most of his critics. Unless you've done more than he has, especially in wartime, as far as I'm concerned you can shove your ad hominum "loser" comments and shut the hell up. And yes, "Sarah Weddington", I mean you.

Larry the Red: That's a wonderful fantasy -- I'm serious. But it's a fantasy because the Democrats won't have the guts to run on the torture issue, and, even if they did, the Republicans wouldn't allow it. The Republicans would claim that they were just as much against torture as the Democrats, but that they, unlike the Democrats, would be tough on terrorists. And the mainstream media would not report that they were lying but would pretend that it is a "he said/she said" question. Until millions more people read balkin.blogspot.com, we can have little hope.

What constitutes "torture" is as much in the eye of the beholder as what constitutes "cruel or unusual punishment." This is not a moral absolute, it is a policy decision.

I am comfortable as a combat veteran and a lawyer with the line drawn in the current legislation defining torture as the intentional infliction of severe pain. I will not follow al Qaeda across that line into the barbarities it has inflicted on our soldiers and civilians.

However, as Sherman so aptly stated: "War is cruelty and you cannot refine it." Compared to the myriad of truly ghastly ways our soldiers (and now our civilians) are dying in this war, I simply have very little sympathy for the transient panic and discomfort inflicted on the likes of Khalid Sheik Muhammad through water boarding or the like.

I realize that you and others may have a more expansive view of what constitutes torture. That doesn't make either you or I wrong or immoral. We simply disagree on a matter of conscience.

In any case, I have a feeling this legislation is not the final word and is instead just another step in a national debate on this subject.

For all those who sit there advocating allowing our troops to use torture I'm a bit curious how many of you served or are actually serving in the U.S. military. Because the question that concerns me on this issue is not what actually happens to al-Qaeda detainees themselves, but what happens 10 or 20 years down the road to the soldiers who are ordered to interrogate them in methods contradictory to the Geneva Convention.

To start, if you can translate the general principles set forth in the Geneva Conventions in concrete definitions of what acts are and are not covered, you are a better man than I.

However, I believe the Administration took your point about putting our soldiers in the middle of this dispute to heart several months ago. Under the new interrogation manual for the military, soldiers will not be using coercive techniques. This is now a debate over what our intelligence services can do.

Professor, your comments are those of a jackinape. You have misunderstood the nature of the issue completely. Our justification for the excruciation of Heretics lies not in terrorism, war, or law, but in Heaven. We struggle now to redeem the souls of men from the great Mohammedian Heresy. Courts and prisons play only a supporting role to the Crusade for conversion and eradication of the Heresy.

Our Holy Leader Bush understands this. He seeks the legal use of the tools of excruiciation as a Relious Duty to reclaim the Souls of the Mohammedians before sending them in Glory to Heaven.

This is a matter of Higher Law and the Will of Creator, not a mere squable among men over wealth or territory, or even terror. Your analysis is insufficiently Pious, Sir!

You should check out Sara Weddington's blog. Dozens of posts. Not a single comment left by a visitor. Many posts seem to be half of some kind of dialogue, the other's part unspoken. You know that woman sitting in the bus shelter talking loudly to the model in the GAP poster plastered to the inside panel of it? She has a blog. I'm not sure it's a satire, but if it's not, it's a cry for help.

To the topic at hand: we recognize autonomous human rights, even in our enemies, because doing so restrains our government's actions against its citizenry. In fact, we insist that all just governments must be so restrained. Otherwise, why not use torture in every investigation? For tax fraud, child molestation, serial killing, car theft, marijuana growing, whatever. If it works so well, and the executive is so very good at designating the almost-certainly-guilty, the ones who deserve torture, we're wasting extraordinary resources on such things as police detectives. This is not an academic contention: Vladimir Bukovsky, a former Soviet dissident who has a rather more intimate experience of torture than I imagine that, say, Sara does, describes how skilled NKVD criminal investigators simply left the force or stopped seriously looking for the guilty as cruelty to suspects became acceptable. Why bother at gumshoe work? Just torture.

(http://tinyurl.com/bcoew)

Demanding that evidence be examined in open court, with full challenge by the accused, and that the guilt of the suspect be demonstrated to all who will reasonably consider it, well, on whom is this burden placed? On the state and its agents. The argument that stripping away from it, and them, this requirement, that doing so makes America stronger, is one that self-evidently enables tyrants and invigorates their supporters. The Framers lived in a world that was every bit as fragile as ours, and lived lives just as vulnerable, and it did not escape their perception that the great danger humans face had become less extermination by an invading nation than the loss of liberty to a over-reaching, home-grown government. If they'd wanted to trade physical security for their rights (initially those of Englishmen), they would not have staged a revolt against George III and the Lord North government.

Oh, to add what should be obvious but, I am shocked to say, is likely forgotten: Often, when we convict the innocent, the guilty goes free. It is in our interest, in the interest of our most base public safety, even dismissing the weakening of those structures which stand between us and authoritarian goverment, to demand accountability in government accusation and conviction and evidence that the state is seeking out genuine criminals, rather than looking where the light happens to better shine.

I assume you are the same "Bart" who has made such a name for himself over at Glenn Greenwald's blog; certainly the writing style and the inability to understand fundamental legal and moral principles seem familiar.

It is a perfectly legitimate exercise of the legislative power to NOT draw bright lines when the conduct sought to be prohibited is likely to change over time. Is there a huge gray area in which CIA personnel conducting "enhanced" interrogations don't know whether they are committing a felony violation of the War Crimes Act? Cool. I'm totally in favor of their not knowing where the line is. That way, they will hopefully stay far outside the gray area.

But the more fundamental failure of folks like you and your ilk is the failure to understand the following.

As a matter of morality, there is NO justification, ever, under any circumstances, for torture. That the other guys would do it to our guys if they had the chance is utterly irrelevant. The only thing that matters is our conduct.

How is it that you and those like you fail (or, perhaps, refuse) to understand that when we adopt the bad guys' tactics, then we forfeit our claim to be better than they are? Have you totally lost your moral compass?

I take your points and I'm in agreement with you on several of your stances. I realize that the Geneva Conventions aren't concrete. They're far from it. But they are an internationally recognized form of legislation that protects our soldiers. Independent players like al-Qaeda or Iraqi militias may not adhere to them, but nation-states generally will. That was my point. Bush's redefining of that bill strips that protection by essentially removing us from the consensus of the international community. It may have a negligible effect on this war. It will have a repercussion on future ones. Not every enemy we've faced has slaughtered all of the POWs...reciprocity is a factor.

As for your comments about the CIA, I don't consider their service to be any more indispensible than a soldier's. They're following orders as well, and they're trying to protect us as well (and thus, I'd argue, don't deserve our demonization). Bush's bill is a politically short-sighted document that sells them out as well. He signed us up to the ICC, another politically short-sighted move. The ICC has the ability to prosecute intelligence operatives as well as soldiers. What happens to those CIA employees when Bush is gone and the next administrations need to build bridges to the United Nations? Will they have to turn the contractors over to prosecution, or will they accept the hostility of the international community and refuse? This bill will eventually put us into a dilemma of having to choose between loyalty to those who served us loyally and maintaining an ability to function multilaterally in the international community. It's not a choice we want to lay on future leaders just because the rules of warfare don't appeal the current president.

Bush's redefining of that bill strips that protection by essentially removing us from the consensus of the international community.

If by the "international community" you are speaking of the EU, I completely agree that our standards are different. Are you arguing for the adoption of something along the lines of this ruling posted above?

For example, while addressing five British interrogation tactics used in the 1970s (wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink), the European Court of Human Rights affirmed that inhuman treatment occurred with respect to a combination of some of the tactics that "caused, if not bodily injury, at least intense physical and mental suffering." The five "techniques were also degrading, since they were such as to arouse in their victims feeling of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance."

This standard is utterly unworkable. The purpose of interrogation of any type is to break the target's "physical and moral resistance" to answering your questions. Standard police interrogation in this country often attempts to instill feelings of "fear, anguish and inferiority."

It may have a negligible effect on this war. It will have a repercussion on future ones. Not every enemy we've faced has slaughtered all of the POWs...reciprocity is a factor.

If a future enemy used the same standards against our legal combatants that we are adopting against their illegal combatants, that would be a tremendous improvement over the what was done to say John McCain by the NVA - beating, starvation, dislocating his shoulders and battering his healing broken leg.

As for your comments about the CIA, I don't consider their service to be any more indispensible than a soldier's.

This is not a legal distinction, but rather a policy decision based on the history of how combat soldiers often treat enemy soldiers after losing their own in a battle. That scene in Saving Private Ryan where they shoot surrendering Germans after suffering a slaughterhouse attack is very real.

I do not like having our soldiers, whose buddies are being killed by the enemy, having this much leeway with interrogation.